H N HARI Vs. A J MAVLA

JUDGEMENT

(1.) THE petitioner filed a complaint under Section 200 of the Cr. P. C. before the learned Magistrate, alleging commission by the respondent of an offence punishable under Section 138 of the Negotiable Instruments act, 1881 ('act' for short ). The learned Magistrate took cognizance, recorded the sworn statement, found sufficient ground to proceed, and directed issuing of process against the respondent-accused for an offence punishable under Section 138 of the Act. That was challenged by the respondent-accused before the learned Sessions Judge, by way of revision petition. The learned Sessions Judge has allowed the revision petition, and has set aside the order of the Trial Court. Petitioner-complainant has now approached this Court under Section 397 of the Cr. P. C.

(2.) THE only question that arises for consideration in this proceeding is as to whether the complainant was obliged to issue notice of demand under clause (b) of the proviso to Section 138 of the Act on the first occasion of dishonour of the cheque itself, or whether it is open to him to present, the cheque again, and then chose to issue such notice. In the case concerned herein, on the first presentation, the cheque was dishonoured. No notice under clause (b) of the proviso to Section 138 of the Act was issued then. The complainant re-presented the cheque within the validity period, and this time also the cheque was dishonoured. It was then that the statutory notice as per the above said provision was issued and the amount not having been paid in time, complaint came to be filed in time. The learned Sessions Judge has held that, statutory notice of demand has to be issued within fifteen days from the earliest dishonour. It is on that basis that the learned Sessions Judge has found fault with the complaint filed on the basis of the second dishonour.

(3.) AS per clause (b) of Section 142 of the Act, complaint has to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. clause (c) of the proviso to Section 138 of the Act speaks of failure of the drawer of the cheque to make the payment of the amount covered by the cheque to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the notice issued under clause (b) of the proviso to Section 138 of the Act. That means that, on failure of the drawer of the cheque to pay the amount within fifteen days from the date of receipt of the notice issued under clause (b) of the proviso to section 138 of the Act, that cause of action arises under clause (c) of the said proviso, and within one month of such arising of cause of action that the complaint has to be filed as per clause (b) of Section 142 of the act. In Sadanandan Bhadran v Madhavan Sunil Kumar , the Supreme court has said that, without taking pre-emptory action in exercise of his right under clause (b) of Section 138 of the Act, the payee can go on presenting the cheque so as to enable him to exercise his right at any point of time during the validity of the cheque. But once he gives a notice under clause (b) of the proviso to Section 138 of the Act, he forfeits the right of presenting the cheque all over again for, in case of failure of drawer to pay the money within the stipulated time, the drawer would be liable for the offence and the cause of action for filing the complaint will arise with the period of one month for filing the complaint being required to be reckoned from the day immediately following the day on which the period of fifteen days from the date of receipt of the notice by the drawer expires.